Maria Corado Rodriguez, and Juan Carlos Corado Moreno v. Immigration & Naturalization Service

828 F.2d 622
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 5, 1987
Docket85-7417
StatusPublished
Cited by4 cases

This text of 828 F.2d 622 (Maria Corado Rodriguez, and Juan Carlos Corado Moreno v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Maria Corado Rodriguez, and Juan Carlos Corado Moreno v. Immigration & Naturalization Service, 828 F.2d 622 (9th Cir. 1987).

Opinions

REINHARDT, Circuit Judge:

I. Introduction

Maria Corado Rodriguez and Juan Carlos Corado Moreno (the “Corados”), a Salvadoran mother and her young son, petition for review of the Board of Immigration Appeals’ (BIA) decision dismissing their appeal of their final deportation orders and denying their motion to reopen. They claim that the BIA erred in dismissing their appeal despite the incompetence of their counsel and the absence of a full and fair hearing prior to deportation. The Corados also aver that, contrary to the BIA’s holding, they did establish a prima facie case of persecution and, consequently, their motion to reopen should have been granted. Because we reverse the BIA’s denial of their motion, we express no opinion on their due process claim alleging incompetence of counsel and the denial of a full and fair hearing.

II. Proceedings Below

The Corados were charged with having entered the United States in July 1984 without inspection by an immigration officer, in violation of Section 241(a)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(2) (1982). At the deportation proceeding on January 4, 1985, petitioners conceded deportability. They did not apply for asylum or withholding of deportation because their nonattorney, INS-accredited counsel mistakenly assumed that persecution by nongovernmental groups could not form the basis for such relief. The immigration judge (IJ) found them deportable but granted them ninety days voluntary departure to April 4, 1985.

Petitioners, represented for the first time by an attorney, appealed the deportation decision to the BIA and submitted a motion to reopen on January 14, 1985. The Board dismissed their appeal, holding that the IJ had conducted a full and fair hearing. The BIA also decided that the Corados had [624]*624failed to establish a prima facie case of persecution and, hence, denied their motion to reopen, after first redesignating it a motion to remand.

On July 22, 1985, the Corados filed a timely petition for review with this court. They allege that the deportation proceeding deprived them of due process because of incompetence of counsel and that the motion to reopen established a prima facie case.

III. Analysis

A. Motion to Reopen/Remand

Along with their appeal of the IJ’s deportation order, the Corados filed a motion to reopen with the BIA. Since the appeal was pending and the Board had not yet “rendered a decision,” 8 C.F.R. § 3.2 (1987), the BIA properly treated their motion as a “motion to remand to the immigration judge.” See C. Gordon & G. Gordon, 8 Immigration Law and Procedure § 62.08[5], at 62-39 (1987). We will accordingly hereinafter refer to the Corados’ motion as a motion to remand.

The formal requirements of the motion to reopen and those of the motion to remand- are for all practical purposes the same. As explained in the leading treatise on immigration law:

Since a motion to remand is so similar to a motion to reopen, the motion to remand should be drafted in conformity with the regulations pertinent to motions to reopen, 8 CFR 3.2 and 3.8.
C. Gordon & G. Gordon, supra, at 62-41.

The regulations issued by the INS thus describe the requirements for a motion to reopen:

Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien’s right to apply for such relief was fully explained to him and an opportunity to apply therefor was afforded him at the former hearing unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing.

8 CFR § 3.2 (1987). See R. Steel, Immigration Law § 14:57 at 468 (1985). We have distilled this administrative language into two requirements. Petitioners “must [1] make a prima facie showing that [they are] eligible for the relief sought, INS v. Jong Ha Wang, 450 U.S. 139, 143-44 n. 5, 101 S.Ct. 1027, 1030 n. 5, 67 L.Ed.2d 123 (1981) (per curiam), and [2] explain [their] failure to present the evidence in the previous proceeding. 8 C.F.R. §§ 3.2, 3.8.” Aviles-Torres v. INS, 790 F.2d 1433, 1436 (9th Cir.1986) (parallel citations omitted). We shall consider the two requirements in reverse order.

B. Explanation of Failure to Seek Asylum or Withholding of Deportation Before the IJ

The Corados claim that they explained the facts described in their affidavit in support of their motion to remand to their representative at the deportation hearing, Ms. Margie Sapiens of the United States Catholic Conference. Ms. Sapiens, though not an attorney, is accredited by the INS to represent indigent aliens in proceedings before the agency pursuant to 8 C.F.R. § 292.1(a)(4) (1987). By her own admission, Ms. Sapiens advised the Corados against applying for asylum or requesting withholding of deportation. Ms. Sapiens based such advice on the mistaken assumption that persecution by a nongovernmental group could not form the basis for the conferring of asylum status or for the issuance of an order prohibiting deportation. Cf. Zepeda-Melendez v. INS, 741 F.2d 285, 289 (9th Cir.1984); McMullen v. INS, 658 F.2d 1312, 1315 (9th Cir.1981). The Cora-dos realized that they could rely on nongovernmental persecution only when they obtained the services of an attorney to present their appeal and he advised them of that fact.

The Corados thus have met the second requirement for a motion to remand. They [625]*625have adequately justified their failure to raise their asylum and withholding claims in the deportation proceeding before the IJ. And they have supported such justification with affidavits from present counsel as well as from Ms. Corado Rodriguez.

The Corados have explained their failure to raise the asylum and withholding of deportation claims at least as adequately as the petitioner in Samimi v. INS,

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